Nanny with a disability

[manicinsomniac]

I suppose this is more of a WWYD but it's totally dead in there.

My cousin went back to work full time in April and hired a nanny to take care of her 2 year old son full time. Since July the nanny has had a horrendously bad back. So bad she can't walk without excruciating pain and can't stand up straight. Every movement hurts her and playing with the little boy is out of the question. She takes him to toddler group and makes sure he is safe and fed but she is physically and emotionally unable to do more, especially as her pain only allows her 2-4 hours sleep at nights. My cousin is essentially paying for a babysitter not a nanny, the child is not getting much interaction at all.

However, the nanny comes to work every day, does her hours and doesn't complain. My cousin believes she is doing the best job that she is capable of and, when she accepted the job, her back was not a problem. She will probably need an operation to even improve the situation and, in the meantime, she can't survive without a job.

My cousin feels torn between (possibly illegally?!) firing a person with a disability who is doing the best she can and the need to have quality care for her son which she is paying a lot of money for.

She asked me what I would do and I just didn't know. I would really want a healthy nanny but I don't know if I could bring myself to tell someone they could no longer work for me. And I'd be worried about being sued!

Would it be unreasonable to give the lady notice or is that totally not on?

To me she is doing the job to the best of her ability but it is not what she was employed to do.
As what to do now - haven't a clue but I don't think I would be happy either.
Feel sorry for the nanny as well but surely she must realise that it is not an ideal situation either .

In legal terms, reasonable adjustments should be made for an employee with a disability. The nanny would have to prove that her back problem was a disability/long term (rather than a temporary health issue).

It sounds like she can't really do the job, I would say that physical play and lifting are both key elements to being a nanny. In an emergency could she manage? If the child was choking? Or about to run into a road?

I'd also be worried about being sued as an employer should she cause further damage to her back carrying out her duties. As an employer you have a responsibility to ensure your staff are fit to work - them saying they can't survive without a job wouldn't be enough.

Having previously run out of school care, I would send home a staff member who could not stand due to pain.

A difficult situation, with no easy answer unfortunately.

Cold as I may seem I'd have to let her go and get a suitable replacement for my child. Surely the cm would understand that the needs of the child should come first, she simply is not up to the job at the moment and I would feel my child deserves to someone who is.

Also if she is operating on 2-4 hours sleep each night along with the pain then she is not likely to be in the best of humour, I imagine she would be cranky and tired all day and I wouldn't think it fair on the child to be in her care all day.

Good point about the possible legal action if she were to cause permanent damage rescuing lifting or grabbing the boy.

Hmmm, based on replies so far it seems like it wouldn't be too terrible if my advice was to be to let her go. I imagine nannies who don't work for large agencies don't have any protection such as sick pay etc do they? It's a pretty shit situation.

It would be worth your cousin taking some advice on the proper processes to go through for any dismissal - there is a lot of tick boxing in making sure you do it right and minimise your exposure.

But, harsh as it sounds, if someone cannot do their job because of their health, and there isn't a reasonable way to adjust things so that they can, yes, they can be dismissed.

Your cousin can't be sued for unfair dismissal as the nanny has less than one year's service. It seems like she is trying to do her best for the nanny and that is to be commended but she is not getting the care she is paying for.

If she was hired in April this year, it's two years.

But that doesn't apply to any of the discrimination headings, and this has 'potential for a scrap over disability' written all over it.

Seriously, a small amount spent on some expert guidance is likely to be money well spent. Doesn't have to be a lawyer. HR consultants can as well (though be careful that they understand privilege and phrase their advice accordingly).

proper guidance does sound like a good idea. Thank you.

The nanny is likely to be employed so if signed of sick the employer is going to be liable for SSP. If she's using a payroll agency to take care of nanny's tax they may have a legal advice line that could offer guidance.

For now your cousin needs to start making any adjustments she can if she hasn't already and managing performance. This will make it easier to prove that nanny is incapable of doing the job and needs to be replaced. As a nanny is a key employee and there's no-one else to cover dismissal on genuine grounds is likely to be upheld as long as everything is done properly.

I wqas about to post what Marrow says - dismiss before 2 years is up (usd to be one) and no unfair dismissal. It might be really important for the sake of the child and even the nanny to do this. However to be fair you might like to tell her what else she needs to be doing and isn't so she can at least try to do those extra things.

Yes, good point. My nanny payroll covered legal advice.

Haven't got a clue legally so can only speak from my conscience.

I would sit down and have a chat with the nanny about her thoughts - she is probably desperate to think of another avenue for employment in the midst of this nightmare. Obviously the child's welfare must come first and she probably recognises this. I am disabled and am very realistic about the limits of what I can do - responsible parenthood requires that this be compensated for. But your friend can't do what I'm doing, and hire a mother's help to be on hand - you'd be employing a nanny for the nanny! The situation can't go on. A chat with the nanny would tell if she has thought of any other possible jobs she could do and if your friend could provide any support with this. Otherwise, the nanny can go on the sick and a temporary nanny was hired for, say, a nine month period, after which time the situation can be reevaluated. If things are no different a more permanent would need to be put in place, hopefully with minimal disruption for the child. At every stage, his needs must be paramount. If your friend feels he needs a permanent transition now, then that's what she should do.

Please don't assume up to two years is ok. We don't know enough to be able to judge whether this comes into the category of disability. And if it does, there is no service requirement at all.

I could be wrong but I think you can sue for unfair dismissal at any point, if you can prove discrimination on gender, race or disability.

Your cousin is obviously trying to do the "right" thing which is great - but in these circumstances I don't think anyone would think she was acting badly if she let the nanny go. Is she still within her probationary period?

I would advise her to ask the nanny (in writing)for a fit to work cert from her GP, specifying the job description and duties expected. Maybe with a hug and some chocolates to sweeten the bitter pill.

Your cousin needs to talk to a solicitor who specialises in employment law. It's obvious that the nanny can't actually do her job and it's not like your cousin is a large company that could find her a desk job instead. She needs to find out where she stands legally.

Also, maybe the nanny isn't quitting because she knows that would screw up her benefits and is waiting to be sacked so it's worth your cousin having a proper chat with her.

Dolly - You are basically right. It's age, sex (including gender reassignment), race, disability, religion or belief, marriage, sexual orientation, pregnancy and maternity. Plus political beliefs in Northern Ireland and some other protections for exercising legal rights like parental leave, trade union membership, etc.

Sadly GPs won't issue 'fit to work' certificates. They will sign someone off, or say that they can work with certain adjustments (e.g. no heavy lifting) but only a full medical report (privately paid for) gives full details of this sort.

Thanks so much for all this great input. I'm going to email my cousin the thread link.

Resigning for health reasons wouldn't (shouldn't) necessarily impact on her benefit claim btw.

I think that it will probably be safe to dismiss her provided due process is followed. But your cousin may want to do more than her legal minimum duty. Perhaps they can discuss this together. A six month plan that says, nanny goes off to see what she can do about her health, with appropriate access to benefits. Employer takes on new nanny for six months and agrees that if the health is resolved, the job will be held open, or at the very least a lovely reference will be provided.

The poor nanny needs a better answer than struggle on. She needs sleep, pain management which may involve her in drugs she can't take while doing childcare, access to decent benefits while she is ill. She needs time to get better. The job must be he'll for her at the moment. Your cousin is trying to do the right thing, but the right thing is to help her resolve this issue and have some time out to do it, with a promise that she will not be written off in the meantime.

It is possible to dismiss on grounds of lack of competency, which would include the circumstances you describe, as long as due process is followed. This does not of course include an aggrieved ex employee from taking legal action, but they may not succeed.

It may also be the case that her bad back does not qualify as a disability (if it is not long term enough to be permanent or semi permanent). She may try to claim disability discrimination, but this is more usual in cases where disabled persons may apply for a job and be refused an interview or a job on the grounds of their disability, when reasonable adjustments could be made. What is a reasonable adjustment is probably going to be much less possible in a family home than for a large employer with a large premises.

Some employers also resort to compromise agreements, but again you would be advised to take legal advice in the negotiation and drawing up of one of these, and its doubtful whether its appropriate.

Not entirely sure that this would class as a disability - Nanny applies for and starts work in April, presumably no health issues at that time and not registered disabled. Nanny develops a bad back in July. Could be classed as a temporary condition which is resulting in poor performance (i.e. she is not able to carry out the full duties of the role).

It's very difficult to advise without full information, which wouldn't really be appropriate on a forum. Your cousin needs to take legal advice.

OP - Disability in law is a physical (or mental) impairment which has a substantial (meaning more than minor or trivial) and long term negative impact on day to day activities. Long term means lasted or likely to last more than a year.

In your case it's sounds like it is affecting her day to day activities. It has already lasted 2-3 months, so much would rest on likely duration. Which in turn would be about medical reports.

That's a big part of the reason I think she needs personalised advice.

Oh, just to be clear, disability for employment law is much wider and loser than for things like disability benefits. Permanence and being registered disabled aren't necessary.

Argh. *looser

Might be best off posting this in the childminders / nanny section op, lots of knowledgeable people there.